NC Attorney General Josh Stein refuses to lift abortion injunction

North Carolina Attorney General Josh Stein speaks during a news conference outside the Durham County Courthouse in Durham, N.C., June 28, 2021. (AP)

RALEIGH — North Carolina Democratic Attorney General Josh Stein issued a statement on July 21 that his office will not act to lift the injunction in Bryant v. Woodall.

“The Department of Justice will not take action that would restrict women’s ability to make their own reproductive health care decisions,” Stein said. “Protecting that ability is more important than ever, as states across the nation are banning abortions in all instances, including rape and incest.”

Stein’s announcement follows a recent U.S. Supreme Court decision upholding Mississippi’s 15-week abortion ban in the Dobbs v. Jackson Women’s Health Organization case that overturned Roe v. Wade.

The 2019 ruling in Bryant v. Woodall meant that women in North Carolina could get an abortion “beyond the 20-week deadline set forth in the statute, through the point of viability.” Lifting the injunction would reinstate North Carolina’s 20-week abortion limit.

North Carolina was not one of the states which had a “trigger law” following the court’s decision, which returned abortion decision-making to the states.

The process of lifting the injunction is already moving through the courts, though. On July 8, Judge William Osteen of the U.S. District Court for the Middle District of North Carolina issued an order requesting briefs from both parties in Bryant v. Woodall to submit briefs by Aug. 7.

Both House Speaker Tim Moore (R-Kings Mountain) and Senate Leader Phil Berger (R-Eden) criticized Stein’s announcement.

Moore’s statement alluded to the joint letter the two lawmakers sent to Stein on June 24 urging him to life the injunction, stating “Today, we finally got our answer.”

“Although he told the people of North Carolina that he has personally recused himself in the Bryant v. Woodall case, he now says that the Justice Department will not defend the state’s late-term abortion law,” said Moore in his statement. “Despite his faux outrage, Josh Stein knows full well that the 20-week ban on the books does not limit women’s freedom, but protects the unborn when they are capable of feeling pain in the womb.”

“With total disregard for his oath, Josh Stein has chosen the pursuit of higher office over his duty to defend the laws of North Carolina. We are exploring all options to defend the law and protect life in North Carolina,” added Moore.

Berger said in a statement “No one should be surprised that Josh Stein is in the abortion-on-demand camp. However, he swore an oath to uphold and enforce North Carolina law, and this is the latest example of his refusal to do his job.”

Various polling has shown most Americans support stricter limits on abortion such as a 2022 Marist poll found 71% of Americans want significant limits on abortion. Similarly, an Associated Press-NORC poll showed 80% believe that abortion should be illegal after the third trimester.

In a press release following the June 24 letter from lawmakers, Stein characterized their request as urging him to take action that “would limit women’s reproductive freedoms in North Carolina.”

Stein’s statement also included a call for electing more Democrats in the year’s elections, claiming that “If we want to keep our freedoms under state law, then we have to elect state officials who commit to protecting them.”

The law banning abortions after 20 weeks, except in the case of saving the life of the mother, has been in the North Carolina state statutes since 1973. It was enacted shortly after the Roe v. Wade decision was handed down. Roe v. Wade protected abortion access until a fetus was deemed capable of living outside the womb; that has typically been assumed to be between the 24 to 28-week mark of a pregnancy.

In 2015 the legislature increased the waiting period to obtain an abortion from 24 hours to 72 and further tailored the definition of medical emergencies which exempted women from the 20-week limit.

The following year, in 2016, the Bryant v. Woodall case was filed on behalf of abortion providers and women seeking abortions. The case claimed that the 20-week mark is a few weeks before a pregnancy is considered “medically viable” and therefore North Carolina’s ban was unconstitutional.

“Abortion is an extremely safe medical procedure,” the case filing stated. “The vast majority of abortions performed in the United States and in North Carolina occur in the first trimester of pregnancy. Only a small number of abortions are performed in the United States after 20 weeks.”

The injunction preventing North Carolina from enforcing its 20-week abortion ban was put into place in 2019 by a U.S. District Court. When the case was appealed, Stein recused himself because of his position on abortion.

In June 2021, the lower court’s ruling was upheld by a three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, upheld a 2019 lower-court decision striking down the law.

Also in June 2021, Democratic Gov. Roy Cooper vetoed House Bill 453, which prohibited abortions from being conducted unless a physician has confirmed the procedure was not being sought because of the actual or presumed race or sex of the unborn child or the presence or presumed presence of Down syndrome.

That was not the first pro-life bill vetoed by Cooper. In 2019, he also vetoed Senate Bill 359, the Born-Alive Abortion Survivors Protection Act, which would have required doctors to tend to a child who survives an abortion attempt. Cooper’s veto message, in part, said the bill “is an unnecessary interference between doctors and their patients.”

Cooper took executive action on abortion earlier this month, signing an executive order requiring cabinet agencies to “coordinate” and “pursue opportunities to protect people or entities who are providing, assisting, seeking, or obtaining lawful reproductive health care services in North Carolina.” Additionally, the order says pregnant cabinet agency employees can’t be required to travel to a state “that has imposed restrictions on access to reproductive health care services.”